2017 (6) TMI 476 - AT - Service Tax

Business support service - providing of storage tanks and other accessories - receipt of facilities service charges / rental charges / facility fees as consideration - Revenue entertained a view that such charges collected by the appellant shall be liable to service tax, considering the said activity as providing infrastructural support covered under tax entry business support service w.e.f. 01.05.2006 - whether or not the appellants are liable to service tax in respect of the consideration received from the clients for putting up machinery/ storage facilities for gas and connected accessory in their premises? Held that - the storage facility are closely linked with sale of gas by the appellant. In other words, the creation and maintenance of such facility in the client s premises is in furtherance of facilitating such sale of gas, by the appellant and purchase of same for industrial use by the client. It is a beneficial arrangement for both. In such situation it will not be correct to consider the amount received towards lease rent/ facility fee etc. as consideration for providing business support to the client. Though the activities of the appellant, can be brought under very generic understanding of infrastructure support, when examined with statutory scope as per explanation indicating nature of services which are to be brought under tax net than it would appear that the present activity will not get covered under the said tax entry. The renting of immovable property or the supply of tangible goods as services liable to tax, appear to have direct relevance to the transactions now under examination - the present transactions which are sought to be taxed by the Revenue cannot be considered as covered by the scope of business support service during the material time. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Whether the appellants are liable to service tax for providing storage tanks and accessories?
- Whether the charges collected by the appellant are covered under the tax entry 'business support service'?
- Whether the demand for service tax is contested on the grounds of limitation?
- Whether the penalties imposed on the appellant are justified?

Analysis:

Issue 1: Liability to Service Tax
The appellants, engaged in manufacturing excisable goods like gases, installed plant/machinery/storage tanks for gases at the buyer's premises. The Revenue claimed that charges collected by the appellants were liable to service tax as infrastructural support under 'business support service' entry. The appellants argued they supplied tangible goods and paid VAT, treating the transaction as a sale. The Tribunal analyzed the agreements and found the storage facilities were linked to the sale of gases, benefiting both parties. Citing precedents, the Tribunal held the charges were not for business support but for facilitating the sale-purchase transaction. Thus, the appellants were not liable to service tax.

Issue 2: Interpretation of Tax Entry
The Tribunal examined the statutory definition of Business Support Service and the explanation for 'infrastructural support services.' It noted that the appellants' activities did not fit the scope of infrastructural support as per the inclusive definition. Despite a broad understanding, the Tribunal held that the specific nature of services mentioned in the explanation did not encompass the appellants' activities. The Tribunal emphasized that the appellants had treated the transaction as a deemed sale, further supporting their argument against service tax liability.

Issue 3: Contest on Limitation
The appellants contested the demand on the grounds of limitation, asserting they paid VAT as deemed sale and thus, there was no basis for invoking suppression or misstatement. The Tribunal agreed, stating that since the appellants treated the transaction as a sale and paid VAT, there was no justification for extending the demand period or imposing penalties. Therefore, the demand for service tax beyond the period was not sustainable.

Issue 4: Penalty Imposition
The original authority imposed penalties under various sections of the Finance Act, 1994. However, the Tribunal, after analyzing the appellants' compliance with VAT laws and the nature of the transaction, concluded that there was no basis for penal action. As the appellants had treated the transaction as a deemed sale and discharged VAT, penalties were deemed unwarranted. Consequently, the penalties imposed were set aside.

In conclusion, the Tribunal held that the appellants were not liable to service tax for providing storage tanks and accessories, as the charges were related to the sale-purchase transaction and not for business support services. The demand for service tax beyond the period was rejected, and penalties were deemed unjustified due to the appellants' compliance with VAT laws. The impugned orders were set aside, and the appeals were allowed.